Ocean Healthcare Ltd v Sigma Pharmaceuticals Plc [2014] EWCA Civ 1468

[2014] EWCA Civ 1468Case No B2/2013/3280
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR’S AND CITY OF LONDON COUNTY COURT
HIS HONOUR JUDGE BIRTLES
2MY50022
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/11/2014
Before
LADY JUSTICE ARDENLORD JUSTICE KITCHINLADY JUSTICE GLOSTER
Between
OCEAN HEALTHCARE LTDAppellantSIGMA PHARMACEUTICALS PLCRespondent
Mr Nazar Mohammad (Direct Access) for AppellantMr Richard Owen-Thomas (instructed by Everatt’s Solicitors) for RespondentFurther submissions received from the appellant on 17 and 18 November 2014Hearing Hearing dates: Tuesday 22 nd July 2014
JudgmentLady Justice Gloster :Introduction
[1]This is an appeal against a judgment of His Honour Judge Birtles, sitting in the Mayors and City of London Court, dated 23 October 2013, whereby he gave judgment against the defendant, Ocean Healthcare Limited (“the appellant”), in the sum of £25,997.49 inclusive of interest and ordered the appellant to pay the claimant’s costs of the action. The claimant, Sigma Pharmaceuticals plc (“the respondent”), had sued the appellant for alleged non-payment of a series of invoices relating to the sale of pharmaceutical goods by the respondent to the appellant.

Background

[2]The respondent was at all material times engaged in the manufacture, marketing and wholesale distribution of pharmaceutical and ancillary products. The appellant was at all material times a small independent pharmacy with premises at 12 High Road, London E13.[3]The respondent sued the appellant in respect of pharmaceutical and ancillary goods said to have been invoiced and delivered to the appellant in 2008 and 2009. The respondent alleged that as at 15 November 2009 the amount owing and unpaid by the appellant (after deduction of credit notes) amounted to approximately £47,679 in respect of goods delivered in 2009 and 2008. In the particulars of claim it was pleaded that some £12,000 was carried forward from previous purchases in 2008, but as will be seen below, that position was subsequently modified. The appellant denied the claim; it asserted that there was no outstanding debt; that all invoices for 2009 had been paid; that certain discounts were due which the respondent had not credited to the appellant; and that goods had not been delivered in respect of certain invoices.[4]The respondent issued summary judgment proceedings which were determined by Master Yoxall in 2010. He gave summary judgment in favour of the respondent in respect of part of the claim, but gave the appellant leave to defend in respect of invoices totalling £21,376.31 in relation to which the appellant contended no goods had ever been delivered. By order dated 18 October 2012 Master Yoxall directed that:
“3. There be standard disclosure by list in respect of the alleged non-delivery of invoiced goods by 1st November 2012. 4. Any request for inspection or copy documents is to be made within 7 days of service of the lists. 5. To assist the trial judge, the parties are to agree a schedule of invoiced goods which the Defendant alleges were not delivered by 29th November 2012. (The schedule should refer to the invoice, the goods, any purchase order, delivery note etc). ”
[5]In fact, despite paragraph 5 of Master Yoxall's order no schedule was apparently agreed by the parties. What appears to have happened is that at trial counsel for both parties used a schedule which had been compiled by a Mr Qamar Haider, the appellant's pharmacy manager and exhibited to his witness statement dated 24 April 2013 ("the Haider Schedule"). This showed the date of the invoice, the invoice number and the amount, and by the designation "Missing DN" indicated invoices in relation to which the appellant claimed delivery notes were missing, and by the designation "N" indicated invoices in relation to which Mr Haider, on behalf of the appellant, claimed orders had never been raised by it, or goods had never been delivered. All the invoices disputed on the Haider Schedule related to invoices dated, and in respect of goods delivered in, 2008. Mr Haider also complained that the respondent had failed to disclose any order confirmations from the appellant in respect of "the alleged invoices from April 2008 to December 2008."[6]The evidence before His Honour Judge Birtles at trial showed that in fact the appellant had paid substantially all the sums due in respect of the 2008 invoices and that only the relatively small sum of about £81.50 was outstanding in respect of 2008 invoices as at the beginning of January 2009. In particular the evidence showed that a sum of £10,000 paid by the appellant on 7 January 2009 had been appropriated by the respondent to clear the appellant's outstanding running account with the respondent as at that date. The evidence also showed that the respondent continued to deliver product up until May 2009, but had stopped doing so in May 2009 when arrears of approximately £48,000 had accrued in respect of the 2009 invoices. There is no evidence that, during the course of 2008, the appellant challenged the authenticity of any of the invoices despite the fact that it was apparently being supplied with statements showing invoice numbers and amounts outstanding during that period and was paying sums in respect of those invoices.[7]At trial before His Honour Judge Birtles, Mr Richard Owen-Thomas appeared for the respondent and Mr Dipre appeared for the appellant. It appears from his judgment that the judge thought that the principal issue before him was whether or not the goods relating to the disputed invoices were delivered to the appellant: see paragraph 13 of the judgment. However as Mr Owen-Thomas accepted in this court, the appellant was also contending at trial that the relevant goods had never been ordered by the appellant, as was clear from the Haider Schedule and Mr Haider's evidence. Delivery notes were missing in relation to invoices totalling £1108.80 (inclusive of VAT) but delivery notes were available, in some cases signed, in others not, in relation to the balance of the invoiced goods which the respondent said had been delivered. At trial the appellant's case was that the delivery notes were a forgery, and the goods had never been ordered or delivered. After a detailed analysis of the available evidence, and a careful assessment of the credibility of the respective witnesses, the judge rejected the appellant's case and, as I have already said, gave judgment in favour of the respondent in an amount of £25,997.49 inclusive of interest. In particular he rejected the evidence of Mr Haider who asserted that the delivery notes were forgeries and that the goods had never been delivered.[8]In order to understand the arguments raised by the appellant it is appropriate to quote paragraphs 6 to 15 of the judgment which for present purposes adequately reflect the judge's conclusions:
““Oral Evidence 6. For the Claimant I heard first, Mr Paul Seaton and Mr Tom Robinson. They are self-employed drivers who are used by the Claimant. In addition, I was to hear Mr Javed Mohammed who was present in court to give his evidence, but it quickly became apparent that he was unable do so, because of his limited grasp of reading and spoken English. Finally, I read a witness statement of Mr Gupta Sahid, who was unable to attend. A Civil Evidence Act notice was served on 17th October 2013. Both Mr Mohammed and Mr Sahid are also self-employed drivers who were used by the Claimant at the material time. I obviously have to give much more limited weight to Mr Mohammed's and Mr Sahid's witness statements, because they were not available to be cross-examined, but I do note that they are similar in form to the evidence of Mr Seaton and Mr Robinson. For the Defendant I heard Mr Kamak Hussein [this is a transcription error and should be a reference to Mr Haider], who is the pharmacy manager employed by the Defendant Credibility 7. Where the evidence of the Claimant's witnesses conflicts with that of Mr Kamak Hussein [this again is a transcription error and should be a reference to Mr Haider], I prefer the evidence of the Claimant's witnesses for the following reasons: (1) consistency with documents. The two live witnesses for the Claimant's evidence is consistent with the delivery notes, which I find as a fact are not forgeries as alleged by Mr Haider. In addition, the evidence of two witnesses who were not able to give evidence is also consistent with the delivery notes. (2) Consistency with other witnesses. Both Mr Seaton's evidence and Mr Robinson's evidence was consistent with each other and their evidence was consistent with the witness statements ofMr Mohammed and Mr Sahid. (3) Inherent probability. In my judgment, the Claimant's evidence is inherently more probable than the Defendant's case, which is that the delivery notes are a forgery. That is a bare assertion. I have, for whatever reason, seen no forensic evidence in this case. However, the audit trail is, in my judgment, clear. In addition there is an absence of contemporaneous complaint by the Defendant or Mr Haider as to the failure for non-delivery by the Claimant. By contrast, the two live witnesses, (Mr Robinson and Mr Seaton), evidence is convincing and consistent with the delivery notes attached to their witness statements. (4) Demeanour; I found Mr Seaton and Mr Robinson to be direct, straightforward witnesses who answered the questions that were asked of them and when there was something that was outside their knowledge they had said so. They were self-employed delivery drivers, delivering pharmaceutical products, purchased in by the Claimant for onward sale. The Defendant was one of a number of pharmacists to which Mr Seaton and Mr Robinson (and the other two drivers delivered). By contrast I found Mr Haider to be unconvincing and evasive in his answers. He was unwilling, or unable to answer a number of questions, which in my judgment, as the pharmacy manager he should have been able to answer. This is a small High Street pharmacy, it consisted, according to Mr Haider, of himself as the manager, one other member of staff and a pharmacist. Accounts were dealt with at the time by the late Mr Ali, who had offices elsewhere. So this was a small shop and as the manager, Mr Haider would have been aware of everything that was going on. I got the distinct impression that he was unwilling to answer a number of questions that he thought might have been embarrassing to his company's case. At times in his evidence he appeared to be almost reciting from a memorised script and sticking to it. I also noticed that he simply did not interact with counsel during cross-examination. Indeed, I thought the body language was quite expressive, because for much of tile time he had half turned away from counsel and was avoiding eye contact. The Material Facts 8. Master Yoxall’s judgment, to which I have referred, sets out the background to the case and I gratefully adopt it. The short facts seem to me to be these: the Claimant is a company which buys in and sells on pharmaceutical products to pharmacies. The Defendant is one such customer, or was one such customer, and was a small pharmacy, as I have described, it only operated from one shop and appears only to have had two members of staff, together with a qualified pharmacist with the accountancy work being dealt with elsewhere. 9. The documents show the way in which the business between the parties operated. Invoices were raised by orders sent by the particular client, in this case the Defendant, to the Claimant. An example of such an invoice appears, for example, at trial bundle page 354. That shows three separate orders on 30th May 2008, taken by three separate members of the Claimant's staff. These were all orders placed by, on the face of the invoice, by the Defendant The goods are then packaged up and they are then delivered by a number of one or more of a number of self-employed drivers utilised by the Claimant for this purpose. 10. Each driver would be visiting, in the course of the day, a number of pharmacies and chemists' shops. I accept the evidence given by Mr Robinson that what he received when he started were the goods packaged up in one or more packages or boxes, to be delivered to a particular pharmacy or chemist. There was an invoice, which it was his job to hand to the person receiving the goods at the pharmacy or chemist and a delivery note on which he was to obtain the signature of the person receiving the goods at the particular pharmacy or chemist. An example of the invoices is the one I have just referred to at trial bundle page 354. An example of the delivery note appears at trial bundle page 305. One can see that on that one for 30th April 2008, Mr Robinson's name appears on it as the driver and there follows a list of pharmacies to which Mr Robinson was to make a delivery. Ocean Healthcare appears at the top of the list and there were three packages. Mr Seaton and Mr Robinson explained in their evidence that the method was to mark the paper -- Mr Robinson particularly -- mark the delivery note making it clear the number of packages for the particular chemist. Thus at page 305 there were three packages to be delivered to Ocean Healthcare Limited. He would require a signature. In order to save time, because of the pressure of the workload, the drivers would not require the person taking delivery of the goods to sign each entry on the delivery note. Thus, for example, at page 305 there were three packages at the top of the page to be delivered to Ocean Healthcare, but only one signature. The same appears lower down in respect of another pharmacy, where there were four packages to be delivered. Only the first column has been signed. I accept the evidence of Mr Robinson that the reason for this was to save time. 11. The procedure was that the driver went into the shop, spoke to a member of staff, handed over the packages and an invoice and got a signature on the delivery note. In the case of the Defendant, Mr Robinson positively identified Mr Haider as a person who had signed his delivery note for the Defendant on a number of occasions. He also referred to the Mr Haider’s brother as signing it. Thus that it did not matter particularly who signed the delivery note, providing it was signed by a member of staff. The Issue 12. As identified by Master Yoxall, there is at trial bundle pages 244 to 246 a series of entries in date order. The first seven at the top of page 244, running from 3rd May 2008 to 5th December 2008, are marked "Missing DN." Mr Haider explained to me that that means a missing delivery note. Having searched the documents he can find no delivery note for any of those alleged deliveries by the Claimant. That amounts to a total sum of £1,108.80 together with VAT. By far the majority of the remainder of the entries on 244, the whole of the entries on 245 and the top of page 246 are a list of deliveries for which the Claimant says that the goods were delivered and Mr Haider, on behalf of the Defendant, says were not delivered. They total £21,376.71 together with VAT.…. 13. The issue for me, as counsel agreed, is whether or not these goods were delivered. For the reasons I have given on credibility, I prefer the evidence of the Claimant’s witnesses to that of Mr Haider. I find as a fact that the deliveries listed at pages 244 to 246, which are in dispute, were delivered to the Defendant’s premises and were signed for. There are some missing delivery notes, but perhaps given the passage of time, as this happened in 2008 and 2009 that is not surprising and in any event they are, in my judgment, De minimis. 14. It is only necessary I think to give one example. I do not propose to trawl through this very substantial bundle, but if one turns to the trial bundle at page 354, one sees the invoice, dated 30th May 2008, and across the page at 355, one sees the delivery note which has been signed across all three parts where a signature is required. 15. As I say, the issue in this case is whether or not the delivery was made. In giving his evidence I found Mr Haider’s various explanations to be simply untenable. At one point he appeared to be blaming the Claimant itself. At another point he appeared to be blaming their systems and at another point he appeared to be blaming the drivers, offering such an explanation as: “Well, perhaps they were mixing their delivery and they signed the form but did not deliver the documents.”
There is more than adequate material in front of me for me to find as a fact that the deliveries were made.” Credibility The Material Facts The Issue

The appellant's grounds of appeal

[9]In its grounds of appeal, which appeared to have been drafted by a director or employee of the appellant, rather than by counsel or solicitors, the appellant contended variously that: i) the judge: a) failed to make all necessary findings of fact; b) failed to address material evidence; c) failed appropriately to apply the burden of proof; d) erred in law; ii) the appellant did not have a fair trial because it did not have a reasonable opportunity to plead its case in relation to what was said to be a fresh allegation made at trial, that Mr Haider, and his brother, Mr Abbas Shaikh, had signed various delivery notes; iii) the appellant was entitled to rely on fresh evidence, namely the report of Miss D Jaffe, handwriting expert, sent under cover of letter dated 28th November 2013 which concluded that there was "dependable evidence for the proposition that neither" Mr Haider nor Mr Shaikh were the authors of the signatures on certain of the delivery notes; iv) the order made in relation to the costs was wrong.[10]In particular in its grounds of appeal the appellant complained: i) at paragraph 5 inter alia that: “The Learned judge confined his findings of law and fact to the sole question whether he accepted the evidence of the Claimant's self-employed delivery drivers that they had made deliveries on the days shown in certain delivery records. Accordingly he did not: - make a finding as to the placement of purchase orders (or, if this was implicit, he did not give any reasons that he's finding); - make a finding that what had been delivered was in accordance with the purchase order(s) (if any); - consider the state of the account”; ii) at paragraph 6 inter alia that: a) despite the order of Master Yoxall no purchase orders were in evidence; original delivery notes were missing and were said to have been destroyed after exchange of list of documents notwithstanding that the appellant had requested inspection; b) there were no prior demands for payment of the 2008 alleged purchases until the commencement of proceedings; the respondent had failed to provide any evidence that it had chased the payment of the 2008 alleged invoices; c) at paragraph 8 inter alia that the appellant had requested that the respondent supply the identity of the individual it alleged to have signed the delivery documentation at the appellant's premises; the respondent had replied that it was not possible to do so but at trial the respondent's witness, Mr Robinson, a delivery driver alleged for the first time that delivery documentation had been signed by Mr Haider or by his brother, Mr Abbas Shaikh.

Permission to appeal

[11]Permission to appeal was granted on the papers by Aikens LJ by an order dated 24 March 2014. In so doing he stated:
““This case concerns fact only and it is very unusual to grant PTA in such a case, particularly where the judge’s conclusion relies, in part, on his assessment of the oral evidence of witnesses at the trial. However, there are disquieting issues raised by the Grounds of Appeal (Nos 5-9) and I am satisfied that there is a reasonable prospect of persuading the court of appeal that one or more of those should succeed. I am also persuaded that there are reasonable grounds for introducing fresh evidence on appeal, but the final decision on that should be taken by the court hearing the appeal. In the meantime, the fresh evidence should be prepared so that it can be adduced de bene esse at the hearing.”
He also granted a stay of execution pending appeal.

The appeal

[12]On the appeal, new counsel, Mr Nazar Mohammad, appeared on behalf of the appellant. He did not provide his own written skeleton argument, but adopted the written arguments which had previously been submitted by the appellant itself. Mr Owen-Thomas appeared for the respondent, as he had done at trial.

The appellant's submissions on the appeal

[13]In his oral submissions Mr Mohammad essentially challenged the entirety of the judge's findings of fact. His principal submissions were that: i) the judge had wrongly narrowed down the issues in contention between the parties to the issue of delivery of goods, so that he had wrongly fettered what he could consider; in fact whether orders had been placed and whether they had been paid for and whether they had been invoiced were still in issue; ii) there was no statement of truth from the respondent that the invoices were true or as to the outstanding amount at the start of the trial; there were discrepancies between the various amounts which had been claimed by the respondent in the claim form and subsequently; iii) it was surprising that there had been no demand by the respondent for payment in respect of the 2008 deliveries; that was unusual in circumstances where, in the original particulars of claim, the respondent had pleaded that "a further amount of £12,724 was carried forward from previous purchases between April 2008 to December 2008"; iv) there were some unusual features of the case by the time of, and at, the trial: in particular: a) the respondent appears to have called no evidence as to how orders were received from the appellant, how these were entered into the respondent's computer system and how these were translated into deliveries to be made by the respondent’s delivery drivers, who were (wholly or mainly) self-employed; there appeared therefore to be no direct evidence to prove the respondent’s case that the appellant had indeed ordered the goods; b) goods were normally ordered by the appellant online and the software system was maintained electronically by the respondent but the electronic records had not been disclosed; the respondent had informed the appellant that the electronic database was no longer available, as it had been “wiped”; c) the respondent did not supply any purchase orders; d) the respondent did not supply any evidence of having sent any reminders or chasers in respect of the deliveries in 2008; e) invoices were said to have been supplied only with deliveries (but the deliveries were denied by the appellant); f) the respondent had not made original invoices available for inspection although the respondent's solicitors had indicated that they would be made available; the appellant continued to challenge the invoices; g) the respondent's particulars of claim did not adequately set out the amounts being claimed and there had never been any amendment of the particulars of claim; the judge wrongly stated at paragraph 2 of his judgment that the particulars of claim had been modified by the order of Master Yoxall; but there was no order on the court file ordering that the claimant had permission to amend its particular of claim; v) the judge should not have taken into consideration the evidence of Mr Java Mohammed, one of the respondent's delivery men, who provided a statement but, because of language difficulties, was unable to give evidence orally or be cross-examined; the judge accepted that he was responsible for 66 deliveries to the Appellant worth £18,027.65, which amounted to 84% of the deliveries; in any event the judge should not have given such evidence any weight; vi) the judge wrongly accepted other evidence from the respondent's delivery men; in particular the judge should not have relied upon the oral evidence of Mr. Robinson at trial that Mr. Haider and his brother Abbas Shaikh had signed for the deliveries in circumstances where both men denied this or, after the passage of time, that Mr Robinson had made the relevant deliveries.[14]In relation to the application to adduce expert evidence to the effect that there was real doubt as to whether the signatures on the delivery notes were those of Mr. Haider and Mr Abbas Shaikh, Mr Mohammad accepted that the evidence could have been available at trial, but pointed out that it was only when Mr Robinson gave his oral evidence that the respondent positively asserted for the first time that the delivery notes had been signed by those men.

The respondent's submissions on the appeal

[15]Mr Owen-Thomas produced a written skeleton on behalf of the respondent supporting the decision of His Honour Judge Birtles. The court did not call on him to present oral submissions in response to those of Mr Mohammad. However Mr Owen-Thomas clarified certain factual matters in relation to the evidence and the issues in contention at trial.

Discussion and determination

[16]I have no doubt that this appeal should be dismissed. My reasons may be shortly summarised as follows.[17]By the date of trial the case involved a straightforward factual dispute between the appellant and the respondent in relation to the outstanding invoices on the Haider Schedule. Either the respondent had fabricated orders, pretended to deliver goods to the appellant and then sent invoices for the phantom deliveries, orthe relevant goods had been delivered pursuant to genuine orders and invoices and the appellant had failed to pay for them.[18]The judge had a large amount of documentary material before him as well as the evidence of the respondent's four delivery men. It was not disputed that the appellant had indeed ordered large quantities of product from the respondent in 2008 and 2009, that genuine invoices had been supplied in respect of such product, reflecting the relevant order numbers, and that the 2009 invoices related to product that had indeed been supplied in accordance with the respondent's normal delivery procedures.[19]It is clear from the material before the judge and his judgment that, by the start of the trial, and as a result of Master Yoxall's summary judgment, there was no doubt as to the quantum of the balance of the respondent's claim notwithstanding there had been no amendment to the formal particulars of claim. There is therefore nothing in the appellant's point that there were discrepancies in the figures that had been put forward by the respondent at various times or that there had been no formal amendment of the particulars of claim. Moreover, this does not appear to have been a point that was taken by counsel for the appellant at trial. Even if it had been, the judge was clearly entitled to reject it, given that it was clear at the start of the trial that the balance of the respondent's claim related to the sum of £21,376.71 plus interest.[20]Likewise there was no substance in the appellant's complaint that the respondent had not made original invoices available for inspection. Mr Owen-Thomas told the court, and I accept, that all the invoices, both disputed and undisputed, were available at trial and that there was no outstanding issue at trial as to whether they were originals or copies. The judge was clearly entitled to accept, on the basis of both the oral and the documentary evidence before him, that the disputed invoices had been genuinely issued and delivered to the appellant in accordance with the respondent’s normal practice on delivery of the goods. Indeed, as was clear from Mr Owen-Thomas's cross-examination of Mr. Haider, the appellant had in fact paid the disputed invoices in relation to 2008.[21]Accordingly, Mr Mohammad’s submission that it was surprising that there was no evidence of the respondent having sent any reminders or chasers in respect of the 2008 deliveries was misconceived. It was clear from the respondent's statements and accounting documents, and from the correspondence, that it regarded all outstanding amounts in respect of the 2008 invoices (both undisputed and disputed) as having been paid and cleared, ultimately by the payment of £10,000 made in January 2009. As it was entitled to do as creditor, the respondent appropriated that sum to the outstanding debit balance on the appellant's account as at the start of January 2009. There was thus no reason why the respondent should have been making demands for payment in respect of the 2008 deliveries. Its claim was in respect of the un-paid 2009 invoices. On the contrary, what was surprising was that, in circumstances where the appellant was making payment in respect of the disputed 2008 invoices, it did not complain at any time that it had not ordered product for which it had paid, or that sums which it thought it was paying in advance for goods yet to be supplied, were not applied in the discharge of the relevant 2009 invoices in respect of products which it had undoubtedly received.[22]On investigation, the fact that the respondent did not call any evidence as to how orders were received from the appellant, how these were entered into the respondent's computer system and how these were translated into deliveries to be made by the respondent’s delivery drivers was not in the circumstances surprising. There was no real dispute at trial as to how the ordering, billing and delivery system worked in practice in relation to product that the appellant accepted had been ordered and delivered. The invoices would record an order number where the appellant had made a booking online using the respondent’s web based system or, alternatively, would record the fact that the order had been made verbally. The delivery notes would quote the invoice and the order number generated by the online ordering system. One of the respondent’s drivers, Mr Robinson, gave evidence as to the procedure on arrival at the appellant’s premises and indeed at other pharmacies. This included handing over the invoice relevant to the particular delivery: see paragraphs 10 and 11 of the judgment. Whilst the appellant and Mr Haider may have disputed that the relevant invoices had been handed over, the judge was clearly entitled to accept Mr Robinson’s evidence that they had indeed been handed over at the time of delivery of the goods. Whilst the onus of proof was on the respondent at trial to prove delivery, nonetheless in the circumstances there was clearly an evidential burden on the appellant to adduce evidence that the records (if any) which it maintained of the orders which it had raised on the respondent did not include the disputed orders. But at trial the appellant did not advance any positive case that it routinely used its own purchase orders to confirm orders; it produced no purchase orders for the undisputed orders; and it produced no book or record of the appellant’s non-disputed purchase orders which might have supported the appellant’s contention that the disputed orders had never been placed. Accordingly I reject Mr Mohammad’s submission that there was no evidence to prove the respondent’s case that the appellant had indeed ordered the goods. Nor was the fact that the respondent had not provided disclosure of the electronic records relating to the ordering process significant; there was no evidential basis to suggest that the electronic database had been deliberately wiped and, in any event, the relevant information as to orders and product was reproduced on the hardcopy invoices.[23]I also reject the appellant's argument that the judge had wrongly narrowed down the issues in contention between the parties to the issue of delivery of goods. Although it is correct that the judge identified the issue as one relating to the delivery of goods, it is implicit in his rehearsal of the evidence and in his conclusion that he decided that the goods had been both ordered and delivered. He would have had well in mind the assertion by Mr Haider that the goods had not been ordered, which he was clearly entitled to reject given the evidence of Mr Robinson and the existence of the invoices clearly recording the specific orders. It is also highly probable that his articulation of the issue reflected the manner in which the case had been argued before him by counsel.[24]Nor is there any substance in the appellant's argument that the judge was wrong to have taken into consideration the evidence of Mr Java Mohammed or to have given it any weight. The fact that, as he stated in paragraph 6 of his judgment, the judge gave more limited weight to Mr Mohammed's and Mr Sahid's witness statements, because they were not available to be cross-examined, did not mean that he was unable to accept their evidence. Given the documentary evidence relating to the invoices and the delivery notes, and the fact that Mr Mohammed's and Mr Sahid's statements were in similar form to the evidence of Mr Seaton and Mr Robinson, who did give oral evidence and were cross-examined, and whose evidence was accepted by the judge, the judge was clearly entitled to conclude on the totality of the evidence that Mr Java Mohammed had indeed delivered 66 deliveries to the appellant worth £18,027.65.[25]I also reject Mr Mohammad's submission that the judge should not have relied upon the oral evidence of Mr. Robinson at trial that Mr. Haider and his brother, Mr Abbas Shaikh, had signed for the deliveries. The fact that the respondent's solicitors had not, apparently, been able prior to trial to identify who had signed the delivery notes did not prevent the judge receiving Mr Robinson's evidence of positive identification at trial or accepting it. It was a matter for the judge to assess whether, in all the circumstances, including the passage of time and the fact that the respondent had not previously identified who it alleged had signed the delivery notes, such evidence was reliable or it was fair for him to rely upon it. In my judgment he cannot be criticised for accepting the evidence. As Mr Owen-Thomas submitted in his written argument, the relevant delivery notes were in the possession of the appellant many months before trial. It was a central tenet of the respondent’s case that items were delivered and signed for by staff employed by the appellant. As the judge found, the staff at the appellant's pharmacy comprised Mr Haider as manager, one other member of staff and a pharmacist. The appellant was clearly in a position to have asked its staff if any of them had signed the relevant delivery notes, called the relevant staff members at trial (other than Mr Haider who was a witness anyway) and indeed, if it thought it appropriate to do so, to have obtained expert handwriting evidence prior to trial to demonstrate (if it was able to do so) that none of them had indeed signed the delivery notes. It is important to bear in mind that, although the onus of proof was on the respondent to prove delivery of the goods, the evidential burden of proving that the invoices and the delivery notes were in effect forgeries laid fairly and squarely upon the appellant.[26]For similar reasons I reject the application to adduce new expert evidence in support of the appeal. Neither of the first two tests in Ladd v Marshall [1954] EWCA Civ 1, [1954] 1 WLR 1489 is satisfied. As Mr Mohammad correctly accepted, the evidence could have been obtained with reasonable diligence for the trial. Moreover, having regard to the content and conclusions of the expert report, and in the light of the quality of the so-called signatures on the relevant delivery notes (often these comprise no more than squiggles), I am in no doubt that, even if it had been available at trial, the expert evidence would not have had any, let alone an important, influence on the result of the case. Nor is there any other reason why this court, having regard to the overriding objective, or the interests of justice, should allow the new evidence to be introduced or remit the case back to the County Court for a retrial.

Disposition

[27]For the above reasons, I would dismiss this appeal. It amounted to no more than an attempt to re-litigate the issues of fact and credibility decided by the judge at trial.[28]I record that after this judgment was circulated in draft the Court was sent extensive further written submissions by the appellant. They were not signed by counsel or solicitors. They have been considered by the court. Apart from correcting one apparent factual error, the submissions amounted to an attempt to re-argue the points which had already been made by the appellant on the appeal. Apart from correcting the apparent factual error, I do not consider that it is otherwise necessary or appropriate to amend the judgment. Lord Justice Kitchin[29]I agree. Lady Justice Arden[30]I also agree.